Week 9 - Access to Justice and Pro-Bono Services Flashcards
(20 cards)
Access to Justice
→ Everyone should, on an equal basis with others, enjoy the rights to equality before the law, to equal protection under the law, to a fair resolution of disputes, to meaningful participation and to be heard - International Principles and Guidelines on Access to Justice For Persons with Disabilities, 2020
→ The effective access to justice enjoyed by individuals necessarily depends on a range of factors, including geographic location, economic capacity, health, education, cultural and linguistic variations, formal and informal discrimination and other variable factors … realising our guaranteeing access to justice means fair and equitable access to legal assistance as well as access to both formal informal justice mechanisms without economic, geographic, social, cultural, linguistic or other barriers (Law Council of Australia)
Access to Justice according to ICC:
- Knowledge: information about rights, claims, and where to go
- Physical Access: getting you and your case before dispute resolution
- Legal Access: legal representation and a fair procedure
Law Council of Australia (2018):
→ Getting the right information about the law and how it applies to you
→ Understanding when you have a legal problem and knowing what to do about it
→ Getting the right help with a legal problem, including from a lawyer
→ Being able to deal with you legal problem and being able to understand the outcome, and
→ Make sure your voice is heard when laws are made
NOTE: Lawyers have a duty to the administration of justice, NOT to provide justice to everyone
Uniform Law 3
ASCR r 5
Bar Rule 3
Bar Rule 8
Re N (A Solicitor) [2010]
Hurdles in Accessing Justice
→ Economic disadvantage: uncertain costs, or fear of cost orders
→ Economic of lawyering: provision for the rich and the poor, but not the missing middle i.e. those who can not access legal aid means and merit test
→ Social Factors: some groups of people have trouble accessing or participating in the system
→ Influence of neoliberalism: diversion away from courts toward mediation
Law Council of Australia, ‘Access to Justice Report’ (2018); National Legal Aid ‘Justice on the Brink’ report (2023); ‘Independent Review of the National Legal Assistance Partnership’ (2024)
→ ATSI
→ People with disability (including mental)
→ People experiencing economic disadvantage (exacerbated by underfunding)
→ LGBTI[Q]+ people (discrimination, no understanding, wider justice)
→ Prisoners and detainees
→ Veterans and serving personnel (trauma and work structure)
→ People experiencing family violence
→ Trafficked and exploited people (vulnerability combined with unfamiliarity)
→ Children and young people (mostly guardian and interest-based and juvenile system)
→ Rural/remote
→ Assylum seekers
→ Older persons
Homeless
Right to representation
→ No “right to legal representation” rather, the test is that there will be no fair trial without representation
→ Same rule/test in civil law: no right to representation unless no fair trial
Applies to both parties e.g. due to importance of cross examination (Fraser v Lafayette)
→ The road to obtaining justice can be onerous
And courts may require ration and committed action
Dietrich v the Queen [1992]
Fraser v Lafayette [2020]
Onakoya v The Sydney Children’s Hospital Network [2023]
Lo-Bono
significantly reduced fee (note: Pro bono includes Low bono under Uniform Law) e.g Wallumatta Legal is Australia’s first low-bono clinic
Pro-Bono
free legal advice and service
Uniform Law 8
What is NOT pro-bono (Australian Pro Bono Centre 2022)
→ Free/reduced assistance without reference to means/public interest (e.g. family and friends)
→ Free first consultations of clients who would otherwise have been billed
→ The case is funded by Legal Aid (even if realistically all costs are not covered)
→ Contingency fee arrangement
→ Sponsorship of cultural/sporting events for marketing
Time spent sitting on the board of a community (legal) organisation or charity
Obtaining Pro-Bono
→ Direct approaches
→ Pro-Bono schemes such as NSW Law Society Pro Bono Scheme or Bar Association Legal Assistance Referral Scheme
→ Registrar’s Pro Bono Panel
- Under the Uniform Civil Procedures Rules (UCPR) court can refer case to the Registrar to refer on to panel member
- Courts consider litigant’s means, capacity to find assistance elsewhere, nature and complexity of the case, and any other relevant matter (r 7.36(2) UCPR)
If no panel member is found within 28 days, the registrar can close the case (r 7.36(4A))
Klewer v Sydney Children’s Hospital Specialty Network [2013]
